In Re Entry No. 49 of Williams

Brown, J. Tbe appellee, Williams, on 1 January, 1906, laid an entry in tbe county of Burke, as follows: “No. 49. — R. Williams enters and locates 2,000 acres of land lying in Burke County and State of North Carolina, in Upper and Lower South Fork Township, and on tbe waters of Upper and Lower South Fork River, adjoining the lands known as tbe Queen and Gaither lands, P. A. Carswell’s grant and tbe Erwin and Greenlee speculation land, and tbe F. S. Drury grant on tbe west, beginning on a stake, tbe corner of P. A. Carswell’s grant, No. 16518, and in tbe line of said Queen and Gaither lands, and runs south 170 poles with said P. A. Carswell’s line east to a white oak, Margaret Chapman’s N. W. corner; thence south with her line, in part, and with F. S. Drury line 300 poles to a stake in tbe red line of tbe southern line run by Montgomery, known as tbe Erwin and Greenlee grant; thence west with said line to a stake in said line and corner of F. S. Drury grant; thence northwardly with said line as it meanders, and around with older-deeded land to tbe Queen and Gaither line and various courses and distances, so as to include all or any vacant lands. “This January 1, 1906. R. Williams, | “Enterer.” *270 Oil 24 January, 1906, the appellants filed the following protest: “To J. E. Battle, • “Register of Deeds of Burles County. “You will take notice, that A. Gr. Olmstead, Marlin E. Olmstead and E. L. Bartlett claim title to the land sought to be entered by R. Williams on January 1, 1906 (No. 49), and hereby file their protest and caveat to the issuing of a warrant on said entry, protesting that said land is not vacant, and pray that you certify copy of the entry and protest to the Clerk of the Superior Court, as provided by law; This Janu,ary 24, 1906. “A. 0. Olmstead, “MarliN E. Olmstead, “E. L. Bartlett. “By J. T. PebeiNS,. “Attorney The proceeding was transferred to the Superior Court for trial, and heard at June Term, 1907. At that term the protestants moved the court to be allowed to enter a nonsuit. This motion was denied, and protestants excepted. “Protestants come into court and, through their counsel, move to be allowed to withdraw their protest, to which R. Williams objects. Motion allowed. Judgment against protestants for the costs.” The court then, after reciting in its judgment the various steps taken in the proceeding, decreed as follows: “It is now, on motion of Avery & Avery, attorneys for said R. Williams, enterer, ordered, adjudged, decreed and declared that the said R. Williams has the right to a warrant of survey upon the entry described in the protest, and that the land covered by said entry is vacant, and that the protestants, A. Gr. Olmstead, Marlin E. Olmstead and E. L. Bartlett,.are not the owners of any part of the land covered by said entry, and that, as against the protest and claim of the said A. Gr. Olmstead, Marlin E. *271 Olmstead and E. L. Bartlett, tbe said enterer, R. Williams, bas the lawful right to call upon the State of North Carolina to issue a grant, after a survey, upon said warrant for the land covered by such survey.” The protestants excepted to the form of this judgment and appealed. 1. We are of the opinion that his Honor did not err in refusing protestants’ motion to be allowed to enter a nonsuit. As we have held, this proceeding is not a civil action. Bowser v. Wescott, at this term. The protestants do not occupy the attitude of plaintiffs in such action. This is a peculiar proceeding, devised by the General Assembly for the purpose of testing the right of an enterer to enter *lands under our entry laws, claiming that they are vacant and unappropriated.' It is not an action of ejectment or trespass. The proceeding is sui generis, but is more analogous to the caveat to a will than anything else. When the protest or caveat is filed and the proceeding transferred to the Superior Court for trial in accordance with the statute, the protestant cannot terminate the proceeding or avoid the effect of a judgment by submitting to a nonsuit. 2. While the protestant cannot take a nonsuit, he can withdraw his protest, just as a defendant in a civil action may withdraw his answer or the caveators to a will may withdraw their caveat. The protestant does not thereby part company with the proceeding. He still remains a party to it, as a defendant in a civil action does, although withdrawing his answer, and he may except to the form of and appeal from the judgment rendered, as he is unquestionably bound by that judgment to the extent the court had power to render it. This brings us to the consideration of the exception of appellants to the judgment rendered. As the proceeding is purely statutory, the judgment must follow the statute and be within its terms. The withdrawal of the protest gave the court power to enter *272 the same judgment against protestants which it would have rendered had the matter been tried before a jury and the right of a claimant to make the entry been sustained. Re-visal, sec. 1713. The judgment should declare, after reciting the various steps in the proceeding, as has been done by his Honor, that the right of the enterer or claimant, R. Williams, to make the entry, No. 49, as set out in the record, be sustained, and that the entry-taker deliver to the said enterer a copy of the entry, with its proper number and a warrant to the survey, or to survey the same in accordance with the statute in such cases made and provided, to the end that said enterer or claimant may apply for the issuance of a grant according to law. Revisal, sec. 1713. Let the cause be remanded, with instructions to enter judgment in accordance with this opinion. We see no reason why the protestants should be taxed with the cost of surveying the entry, which necessarily is subsequent to the withdrawal of the protest and would have been incurred by the claimant had there been no protest. All the costs of the Superior Court should be taxed against the protestants, including the costs of any survey made by direction of the court. Let the costs of this Court be equally divided between appellants and appel-lee, each paying one-half. Modified and Affirmed. Walker and Hoee, JJ., dissent.